Woodbury v Miles - [2006] NSWWCCPD 55

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS

CITATION:Woodbury v Miles [2006] NSWWCCPD 55
APPELLANT:  Evan Woodbury
RESPONDENTS:  Peter and Annie Miles
INSURER:Employers’ Mutual Indemnity (Workers Compensation) Ltd
FILE NUMBER:  WCC 11302-04
DATE OF REGISTRAR’S DECISION:             23 December 2004
DATE OF APPEAL DECISION:  27 March 2006
SUBJECT MATTER OF DECISION: Appeal against Registrar’s assessment of costs; date at which law is to be applied; maximum totals allowed in the Compensation Costs Table; travelling and accommodation expenses; Schedule 6 of the Workers Compensation Regulation 2003.
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant: McCabe Partners, Lawyers
Respondent: Moray & Agnew, Solicitors

ORDERS MADE ON APPEAL: The Registrar’s determination of Mr Woodbury’s claim for costs in this matter, dated 23 December 2004, is amended in accordance with these reasons.

The Respondents, Peter and Annie Miles, are to pay the Appellant, Mr Woodbury, $550.00 inclusive of GST in respect of his costs in this appeal.

BACKGROUND TO THE APPEAL

On 27 January 2005, Evan Woodbury filed an appeal in respect of a costs determination made by the Registrar of the Workers Compensation Commission (‘the Commission’) on 23 December 2004. The Respondents to the appeal are Peter and Annie Miles. The Respondents’ workers compensation insurer, which acted on behalf of the Respondents in the Commission proceedings, is Employers’ Mutual Indemnity (Workers Compensation) Ltd (‘EMI’).

The dispute to which the costs determination relates was determined by consent on 16 July 2003 with the Commission issuing a Certificate of Determination requiring (1) a Notice to Discontinue to be filed within 14 days and (2) the “Respondent to pay the Applicant’s costs as agreed or assessed”.

The parties having failed to come to an agreement as to costs, on 23 July 2004, Mr Woodbury applied to the Registrar for an assessment of costs. The Registrar delegated the assessment to a Commission Arbitrator who made the determination, dated 23 December 2003 in error and, in fact, made on 23 December 2004. The Certificate of Determination stated:

“1. Pursuant to an Order dated 17 July 2003 [sic - it was dated 16 July 2003] the Respondent employer is liable to pay the Applicant’s costs of the proceedings as agreed or assessed.
2. The Applicant’s costs of the proceedings are assessed at $13,046.81.
3. The Applicant’s costs of the assessment are not allowed.
4. The Respondent is to pay the amount of $13,046.81 to the Applicant if those costs have not already been paid.”

In his ‘Statement of Reasons for Decision’, the Arbitrator noted that there had been extensive negotiations between the parties in the course of which “varying and differing views” had been expressed at various times in the correspondence. He noted the Respondents’ submission that the previous correspondence between the parties was without prejudice to a formal assessment by the Commission. The Arbitrator therefore dealt with each of the identified costs items and disbursements in turn and made a finding in respect of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWWCCPD 55
Decision Date: 27 March 2006

CaseChat Overview and Summary

Woodbury v Miles was an appeal heard by the Workers Compensation Commission of New South Wales against a decision of the Registrar concerning the assessment of costs in a workers compensation matter. Evan Woodbury, the appellant, sought to appeal the Registrar’s determination of his claim for costs against Peter and Annie Miles, the respondents, who were represented by Employers’ Mutual Indemnity (Workers Compensation) Ltd, the insurer. Woodbury argued that the Registrar had made errors in assessing his claim for professional costs, disbursements, and other expenses related to the case. Woodbury’s appeal focused on five specific items: professional costs for obtaining and reviewing medical reports, professional costs under certain items of the Compensation Costs Table, solicitor's travelling expenses, barrister’s expenses, and medical reports.

The court identified and reviewed the relevant legal issues, including the applicable law for the assessment of costs, the maximum allowable costs under the Compensation Costs Table, and the proper interpretation of certain provisions of the Workers Compensation Regulation 2003. The Acting Deputy President, Robin Handley, concluded that the Registrar had erred in several aspects of the cost assessment. For instance, the Registrar had incorrectly applied a lower maximum total for obtaining and reviewing medical reports. Additionally, the Registrar had made errors in calculating costs for certain conferences and had failed to allow for the solicitor’s accommodation expenses. However, the court found no error in the Registrar’s decision to disallow the barrister’s travelling and accommodation expenses, as the legislation did not permit separate claims for these expenses by both a solicitor and a barrister.

The Acting Deputy President amended the Registrar’s determination to reflect the correct costs, resulting in an additional liability for the respondents. Woodbury was partially successful in his appeal, and the court ordered the respondents to pay Woodbury $550.00 inclusive of GST for his costs in the appeal. The final order was that Peter and Annie Miles were to pay Evan Woodbury $550.00 inclusive of GST in respect of his costs in this appeal.

Orders